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Case 1:13-cv-00983-SLR Document 5 Filed 07/31/13 Page 1 of 5 PageID #: 18









) Civ. No. 13-983-SLR



At Wilmington thisJP"day of July, 2013, having screened the case pursuant to 28

U.S.C. § 1915(e)(2);

IT IS ORDERED that the complaint is dismissed as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B)(i), for the reasons that follow:

1. Background. Plaintiff was a participant in a methadone clinic run by the

Brandywine Counseling & Community Services ("Brandywine Counseling"). He was

dismissed from the program after he became upset when he did not receive bus tickets

that were assigned to provide him transportation to the clinic. Without the bus tickets,

plaintiff was unable to get his daily dose of methadone. Plaintiff complains that he was

"continually put off" and the matter was "not investigated." After several weeks of

attempting to obtain the tickets, plaintiff confronted the individual responsible for

dispensing the tickets and told her what he "really thought of her." As a result, plaintiff

was detoxed from the program in one week, told to attend anger management, and was

not allowed to return to the program for seven months. Plaintiff has tried on four

occasions to return to the program, all to no avail, even though he explained that "it

Case 1:13-cv-00983-SLR Document 5 Filed 07/31/13 Page 2 of 5 PageID #: 19

wasn't his fault." Plaintiff alleges discriminatory and unfair proceedings related to the

treatment program by virtue of "equal rights of public services to any and all persons

under state and federal jurisdiction."

2. Standard of review. This court must dismiss, at the earliest practicable time,

certain in forma pauperis actions that are frivolous, malicious, fail to state a claim, or

seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.

§ 1915(e)(2). The court must accept all factual allegations in a complaint as true and

take them in the light most favorable to a pro se plaintiff. Phillips v. County of

Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93

(2007). Because plaintiff proceeds pro se, his pleading is liberally construed and his

complaint, "however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations


3. An action is frivolous if it "lacks an arguable basis either in law or in fact."

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a

court may dismiss a complaint as frivolous if it is "based on an indisputably meritless

legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario.

Neitzke, 490 at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); see, e.g.,

Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995) (holding frivolous a suit

alleging that prison officials took an inmate's pen and refused to give it back).

4. The legal standard for dismissing a complaint for failure to state a claim

pursuant to § 1915( e )(2)(B)(ii) is identical to the legal standard used when ruling on


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Rule 12(b)(6) motions. Tourscherv. McCullough, 184 F.3d 236,240 (3d Cir. 1999)

(applying Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state a claim under

§ 1915(e)(2)(8». However, before dismissing a complaint or claims for failure to state a

claim upon which relief may be granted pursuant to the screening provisions of 28

U.S.C. § 1915, the court must grant plaintiff leave to amend his complaint unless

amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293

F.3d 103, 114 (3d Cir. 2002).

5. A well-pleaded complaint must contain more than mere labels and

conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At!. Corp. v. Twombly,

550 U.S. 544 (2007). The assumption of truth is inapplicable to legal conclusions or to

"[t]hreadbare recitals of the elements of a cause of action supported by mere

conclusory statements." Id. at 1949. When determining whether dismissal is

appropriate, the court conducts a two-part analysis. Fowler v. UPMC Shadyside, 578

F.3d 203, 210 (3d Cir. 2009). First, the factual and legal elements of a claim are

separated. Id. The court must accept all of the complaint's well-pleaded facts as true,

but may disregard any legal conclusions. Id. at 210-11. Second, the court must

determine whether the facts alleged in the complaint are sufficient to show that plaintiff

has a "plausible claim for relief."1 Id. at 211. In other words, the complaint must do

more than allege plaintiff's entitlement to relief; rather it must "show" such an

1A claim is facially plausible when its factual content allows the court to draw a

reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). The plausibility standard "asks for
more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a
complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops
short of the line between possibility and plausibility of 'entitlement to relief.'" Id.


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entitlement with its facts. Id. "[WJhere the well-pleaded facts do not permit the court to

infer more than a mere possibility of misconduct, the complaint has alleged - but it has

not shown - that the pleader is entitled to relief." Iqbal, 556 U.S. at 678 (quoting Fed. R.

Civ. P. 8(a)(2».

6. Discussion. Plaintiff does not indicate under which statute he proceeds. To

the extent he claims discrimination under 42 U.S.C. § 1983, the claims fail. To state a

claim under 42 U.S.C. §1983, a plaintiff must allege "the violation of a right secured by

the Constitution or laws of the United States and must show that the alleged deprivation

was committed by a person acting under color of state law." West v. Atkins, 487 U.S.

42,48 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on

other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986». To act under

"color of state law" a defendant must be "clothed with the authority of state law." West,

487 U.S. at 49.

7. Brandywine Counseling is a non-profit corporation, not a state agency. See Nor are its employees, defendants

Director of Program and Bus Pass Provider, state actors. They are private individuals

who are employed by Brandywine Counseling. None of the defendants are "clothed

with the authority of state law." See Reichley v. Pennsylvania Dep't of Agric., 427 F.3d

236, 244-45 (3d Cir. 2005); Biener v. Calio, 361 F.3d 206, 216-17 (3d. Cir. 2004).

8. To the extent that plaintiff asserts a discrimination claim under any other

statute, the claims also fail. The allegations in the complaint do not indicate that

plaintiff was removed from the methadone program by reason of discrimination.

Rather, plaintiff was dismissed from the program because of acts taken by him towards


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the individual who dispensed the bus passes and, upon completion of anger

management, he may return to the methadone program. The complaint does not show

an entitlement to relief. Even given the latitude accorded pro se pleadings, the filing is

devoid of any possible merit as to be frivolous. Therefore, the complaint will be

dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(8)(i).

9. Conclusion. For the above reasons, the complaint is dismissed as frivolous

pursuant to 28 U.S.C. § 1915(e)(2)(8)(i). The court finds amendment futile. The clerk

of court is directed to close the case.